Justice and
Home Affairs
Customs and Immigration Service
Report
To: Minister for Home Affairs
Submitted By: Acting Director, Immigration & Nationality
Date: 13 July 2020
Subject: Work Permit Policy (General Agreement on Trade in Services: Mode 4)
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1 On 17 October 2019 the UK Foreign Secretary wrote formally to the World Trade Organisation (“WTO”) notifying them that the UK intended to extend the territorial scope of its WTO membership to Jersey and the other Crown Dependencies. Jersey will be covered by the UK’s WTO membership from the end of the Brexit transition period (currently set as 31 December 2020). This means that Jersey’s domestic arrangements will need to provide for the levels of market liberalisation which the UK has committed to offer to other WTO members in its WTO Schedules of commitments in relation to the supply of goods and services.
2 The General Agreement on Trade in Services (“GATS”) is a treaty of the WTO. It covers four modes of cross-border supply of services. Mode 4 relates to the supply of a service by one Member, through presence of natural persons of a Member in the territory of another Member.[1] The GATS does not apply to measures affecting access to the employment market of a Member, nor does it apply to measures regarding citizenship, residence or employment on a permanent basis. The UK’s GATS Schedule makes a number of specific liberalisation commitments in relation to Mode 4. Once WTO membership applies to Jersey at the end of the transition period, Jersey’s domestic legislation and arrangements that affect Mode 4 supplies of services must meet these GATS commitments.
3 Work permits are issued to employers when they meet the requirements of the Immigration (Work Permits) (Jersey) Rules 1995[2] which are made by the Minister for Home Affairs and administered by the Customs and Immigration Service.
4 The Immigration Work Permit Policy (“the Policy”) needs to be consistent with the UK’s WTO commitments on modes of supply in respect of the trade in services. The changes proposed to the Policy are designed to ensure consistency with these Mode 4 commitments, and are based on the eligibility criteria for contractual service suppliers and independent professionals contained in the Home Office Tier 5 (Temporary Worker) of the UK Points-Based System guidance[3].
5 The new category in the Policy, under the heading of General Agreement on Trade in Services, would cover contractual service suppliers and independent professionals:
- Contractual service suppliers
- the employer must be based outside the European Union in a country or territory which is a signatory to the trade agreement under which they are supplying services and the employee must be a national of that country;
- the person must have been an employee of the company for at least 12 months;
- the person must have a degree level or equivalent level qualification, unless they are:
- supplying fashion model services, chef de cuisine services or entertainment services other than audiovisual services under the EU - CARIFORUM economic partnership agreement; or
- supplying advertising and translation services;
- where required by relevant Jersey legislation, regulations or sectoral requirements, the person must hold any specific professional qualifications or registrations to provide the services in Jersey;
- the person must have three years professional experience in the sector in which they are supplying services unless they are supplying chef de cuisine services under the EU – CARIFORUM economic partnership agreement, in which case, the person must have at least six years’ relevant experience at the level of chef de cuisine and have an advanced technical qualification; and
- the maximum period for which a work permit can be applied for on the basis of a contractual service supplier is 2 years unless providing a service under the EU – CARIFORUM economic partnership agreement, the EU – Andean multiparty trade agreement and the EU European Union – Chile free trade agreement, when it is a maximum period of 6 months in any 12 month period.
- Independent professionals
- the business must be established on the territory of the country which is signatory to the trade agreement under which the person supplying services and must be a national of that country;
- the person must have a university degree or technical qualification which demonstrates knowledge of a similar level;
- where required by relevant legislation, regulations or sectoral requirements, the person must have specific professional qualifications to provide some services in Jersey;
- the person must have six years professional experience in the sector in which they are supplying services; and
- the maximum period for which a work permit can be applied for on the basis of an independent professional is 2 years.
6 Applicants who are granted immigration permission under these two new routes will remain subject to the requirements of the Control of Housing and Work (Jersey) Law 2012, as are applicants to every other immigration permission.
Recommendation
It is recommended that the Minister for Home Affairs instructs the Customs and Immigration Service to make the appropriate amendments to the Policy to include contractual service suppliers and independent professionals.
Acting Director, Immigration & Nationality
[1] There are four modes of supply in respect of the trade in services that are protected by the WTO:
Mode 1 — Cross border trade: from the territory of one Member into the territory of any other Member
Mode 2 — Consumption abroad: in the territory of one Member to the service consumer of any other Member
Mode 3 —Commercial presence: by a service supplier of one Member, through commercial presence, in the territory of any other Member
Mode 4 — Presence of natural persons: by a service supplier of one Member, through the presence of natural persons of a Member in the territory of any other Member